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McBriety v. Colvin

United States District Court, D. Oregon

July 30, 2014

HOLLY McBRIETY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


MICHAEL McSHANE, District Judge.

Plaintiff Holly McBriety brings this action challenging the decision of the Administrative Law Judge (ALJ). The Commissioner of the Social Security Administration agrees the ALJ erred, but asks the court to remand the matter for further proceedings. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff filed an application for benefits on September 15, 2003. ALJ Jean Kingrey issued a decision on May 9, 2007, determining that Plaintiff was not disabled. TR 19.[1] Plaintiff requested Appeals Council review of the ALJ's decision, which the Appeals Council denied. TR 8-11. Plaintiff then filed a civil action challenging the decision and, pursuant to a stipulation of the parties, the court reversed and remanded ALJ Kingrey's decision for further proceedings. Following a hearing on remand, a second ALJ, John J. Madden, Jr. (hereafter the "ALJ"), issued a partially favorable decision finding Plaintiff disabled as of May 1, 2009. TR 906. Plaintiff appealed and the Appeals Council reminded the case for the purpose of having ALJ Madden reconsider the period prior to May 1, 2009. On December 7, 2012, the ALJ issued another decision finding Plaintiff disabled as of April 1, 2004. Plaintiff appealed, alleging that she became disabled as of February 11, 2003.

Because the ALJ erred in rejecting the opinion of treating physician Dr. Gilmour and in finding Plaintiff's not credible, the Commissioner's decision is REVERSED. Because it is clear the ALJ would have to find Plaintiff disabled as of February 11, 2003, this matter is remanded for an award of benefits based on a disability onset date of February 11, 2003.


The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.Jd 1190, 1193 (9th Cir. 2004). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrtive record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).


The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id.

At step one, the ALJ found that Plaintiff engaged in substantial gainful activity from September 2002 until February 2003. Plaintiff does not dispute that she engaged in said activity, but points out that she alleges a disability onset date of February 11, 2003. At step two, the ALJ found that Plaintiff had the following severe impairments: obesity; chronic pain due to degenerative disc disease, deconditioning, and obesity; meniscal tear and arthritis of the left knee; and sleep apnea. TR 841.

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled a listing in 20 C.F.R. § 404, subpt. P, app. 1. The ALJ found that prior to April 1, 2004, Plaintiff had the RFC to sit for six hours in an eight hour workday, stand or walk for two hours in an eight hour workday, lift and/or carry 10 pounds, stoop, kneel, crawl, and crouch occasionally, and should not climb ladders, ropes, or scaffolding. TR 843. At step four, the ALJ found that prior to April 1, 2004, Plaintiff's RFC allowed her to perform her past relevant work as an order clerk and that Plaintiff was not disabled. TR 848.

Defendant and Plaintiff agree-albeit for different reasons-that the ALJ erred in evaluating Plaintiff's original application for disability and that these errors compel remand. Defendant argues remand is necessary as Social Security Ruling 83-20 requires the assistance of a medical expert to determine Plaintiff's disability onset date. Plaintiff argues that the decision should be reversed and remanded for payment of benefits, in part based on the ALJ's errors in weighing the medical opinions and in finding Plaintiff not credible. Plaintiff argues the errors require finding her disabled as of February 2003. I agree with the Plaintiff.

I. Dr. Gilmour's Opinion

A treating physician's opinion may only be rejected if the ALJ has clear and convincing reasons, supported by substantial evidence, for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal citations omitted). Dr. Gilmour was Plaintiff's primary care physician for several years, including several years of treating Plaintiff before. Plaintiff ever complained of back pain. On November 2, 2002, before the alleged onset of disability, Dr. Gilmour first opined that Plaintiff needed a walker for safe ambulation. TR 416. On April 7, 2003, he opined that Plaintiff should not sit for more than 20 minutes, stand for more than 15 minutes, walk for further than 100 feet at a time, or bend or stoop, until completion of physical therapy. TR 410. Following Plaintiff's completion of physical therapy, a treatment that proved unsuccessful, Dr. Gilmour noted that Plaintiff was no longer employed and that she could no longer work due to her permanent chronic back pain. TR 390, 621. Defendant argues that the ALJ was correct in rejecting Dr. Gilmour's opinions because Dr. Gilmour's own treatment notes contradict the opinions. I disagree.

An ALJ may not properly reject a treating physician's opinion on the grounds that the physician's objective notes do not provide a basis for said opinion. Rodriguez v. Bowen, 876 F.2d 759, 762-63 (9th Cir. 1989). Furthermore, the ALJ cannot cite the physician's inability to support his findings with objective laboratory findings as aclear and convincing reason for rejecting the physician's opinion. Id. at 762 (internal citations omitted). The ALj must give ...

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